Texas Divorce Process

Overview of the divorce process in Texas

Prior to making the decision to proceed with a divorce in Texas, it is a good idea to become familiar with the divorce basics and the key issues that must be addressed in the divorce process.

Texas Divorce Basics

Names of the Parties: The spouse that files the petition for divorce (i.e. initiates the divorce with the court) is known as the "Petitioner". The other spouse is known as the "Respondent".

Jurisdiction: Texas courts only have jurisdiction to grant divorces for Texas residents. So, one of the spouses must be a Texas resident for 6 months prior to the date the petition for divorce is filed in Texas.

Venue: At least one spouse must reside in the county where the divorce is filed for at least 90 days prior to the filing of the divorce petition.

No Fault: Texas is a No Fault Divorce State. "No Fault" means that one spouse DOES NOT have to prove the other spouse has done anything wrong in order to obtain a divorce. You CAN NOT be held in a marriage if the other spouse does not want to sign or refuses to participate in the divorce process.

Cooling Off Period: Texas courts cannot grant a divorce until 61 days have passed from the date the petition was filed. This cooling off period supposedly helps couples who change their mind.

Appeal Period: After the divorce decree is signed by the judge, each spouse can technically file an appeal for 30 days. As such, neither spouse can get married until the divorce decree is final (30 days has elapsed from the date in which the judge signed divorce decree).

Grounds for a divorce in Texas

Adultery
Abandonment
Confinement for incurable insanity for three years
Conviction of a felony and imprisonment for over one year
Cruel and inhuman treatment.
Insupportability - This is the catchall that almost all divorces are filed under. Insupportability means “discord or conflict of personalities” that has prevented any “reasonable expectation of reconciliation.”

The 6 Step Texas Divorce Process:

The first step in getting a divorce in Texas is to file the "Petition for Divorce". This form will tell the judge and your spouse that you want a divorce.

Make 2 copies of a fully filled out and completed Petition for Divorce. Take the original along with 2 copies to the District Clerk's Office at your local county Courthouse where either spouse has lived for the last 90 days. The fee for filing the Petition for Divorce typically ranges from $250 - $300 dollars.
If for any reason you are unable to pay the filing fee, you may be eligible to have the county filing fees waived due to either a lack of money or if you are receiving public benefits for assistance (check with the district clerk in the county in which you intend to file the divorce). This is called an Affidavit of Inability of Pay and it will require you to disclose your financials to the court.
The Clerk will stamp your paperwork and assign a cause number and a judicial district (i.e. specific court). You will receive your two copies back, one for you and the other needs to be delivered to your spouse for legal notice of your divorce filing. Be sure to put your copy in a safe place.

The Petitioner (the person initiating the divorce) must give legal notice to the Respondent (spouse). This means that one of the file-stamped copies of the petition for divorce must be delivered to your spouse. There are a couple of methods of proving to the judge that you provided notice to your spouse:

Official Service in Person

You can hire an official process server or constable to give legal notice to the Respondent (your spouse) in person. After your spouse has been served you will receive a Return of Service from the process server/constable that is filed with the clerk to prove that your spouse received a copy of the Petition.

Waiver of Service

If the Respondent doesn't want to have a process server or constable serve/deliver the Petition for Divorce, the Respondent can simply sign a waiver of service in front of a notary. This will let the court know that they received a copy of the Petition for Divorce and thus have been informed of the divorce.
Avoid giving your spouse the Waiver of Service until you have filed your Original Petition for Divorce with the court.
If the Respondent doesn't want to waive their right to contest the divorce, they can file a Response (aka Answer or General Denial) instead.

Response/Answer

The filing of an Answer by the Respondent lets the court know that the Respondent has received notice of the divorce and is actively participating in the case and may contest the terms of the divorce.
The Answer alone doesn't assert any claims against the Petitioner. To make claims against the Petitioner, the Respondent has to file a Counter Petition for Divorce.
The spouse that files the Answer does not have to go to court and it does not necessarily mean that the case is contested.

Important Reminders

This Return of Service form must be filed with the district clerk to show the Court that your spouse has received legal notice of the divorce case.
If the Respondent fails to file an Answer (response to the divorce for through the use of an Answer Form) by the Monday following the 20th day after receipt of legal notice, the Petitioner can request a default judgment and the Court can award a divorce to the Petitioner without the Respondent signing off.
Your divorce can only be finalized after 60 days from the day you filed the petition for divorce but the 60 day waiting period can be waived due to domestic violence.

Did your spouse file an Answer or have made it clear that they will not agree with your terms of divorce? If the answer to this question is "yes", you have a contested divorce. The divorce process is stressful enough, a contested divorce is more stressful and expensive. The cost of a divorce can vary greatly depending on whether it is a contested or uncontested divorce.

Contested divorce in Texas (Spouse Disagrees)(High Cost)

If you and your spouse argue rather then come to any kind of agreement, you and your spouse will take the issues to a judge to decide.
Texas has juries in divorce trials
Most divorce trials aren't long, drawn out affairs like trials you may have seen on television. Many take a day or two, or even just a morning
It will take a huge emotional toll on you, your spouse, and certainly your kids, and also your bank account.
An average divorce may run $30,000 (each) with lawyers and could easily go higher with a few added complexities.
More forms to fill out and more information needed from both parties.
Will not recommend you do it yourself, get some assistance from a mediator or an attorney.

Uncontested Divorce in Texas (Spouse Agrees)(Lower Cost)

If you can make this happen its is the best choice for you and your spouse. Uncontested divorce is when you and your spouse work together to agree on the terms of your divorce, and you both fill out the divorce papers cooperatively to make the divorce happen.
Your uncontested case is ‘agreed’ if you and your spouse agree on what to put in your Decree of Divorce, your spouse has signed a waiver or answer, and your spouse is willing to sign your Decree of Divorce.
There is no formal trial, and you probably won't have to ever appear in court.
The judge will usually approve a settlement agreement unless it's clear that the terms are completely unfair to one person or were arranged when one person was under duress.
Takes less time to complete an uncontested divorce and could cost you $100's, not $1000's.

1. Free Forms

The state of Texas has published free divorce forms. They are a little tricky to use, but will get the job done if your divorce is uncontested and you meet all of the requirements.

2. Do It Yourself Divorce (Low Cost)

If both spouses are willing to come to an agreement, you have what the divorce industry calls an "uncontested divorce". An uncontested divorce is pretty simple. Using uncontested divorce forms can make the divorce process simple and much faster. Once you are done with an online interview, you will have all necessary forms and instructions on how to use them.

3. LAWYER (Highest cost)

If you and your spouse argue rather then come to any kind of agreement, you and your spouse will take the issues to a judge to decide. Both parties will get a lawyer and fight for what they want and don't want based on their arguments. Like mentioned earlier, this is a very long and expensive process that should only be used if you and your spouse are unable to agree on most things.

Each spouse hires a lawyer
There is no guarantee who will get what because it is left up to the judge for the final verdict.
Other professionals are typically involve like accountants, therapist, actuary and this makes the cost go up.
Kids are put through a lot of stress.
Will take over at least triple the time compared to an uncontested divorce waiting period of 61 days.

Every divorcing couple must consider how property and debts will be divided, and whether one spouse will pay spousal support to the other. If you have kids, you'll also need to make decisions about child custody, visitation, and support. You and your spouse will either need to work out these three big issues or turn them over to a judge to decide.

There are two types of property in Texas Community and Separate Property. Each explained below:

COMMUNITY PROPERTY

Is the collection of assets you and your spouse have gathered during your marriage, including money, real estate, investments, pension plans, and so on. Martial debts are obligations you took on together during your married life. Both the property and the debts belong to both of you, and part of the divorce process will be to divide them up between you. Unless the court finds that equal division would be unjust.
Texas is a community property state.
Any property possessed by either spouse while married is considered to be community property.

SEPARATE PROPERTY

Are assets or debts that either of you had before your marriage, or that you acquired after the permeant separation, are called separate property or debts. Generally, each of you will keep your separate property and be responsible for your separate debts, in some states separate property can be divided at divorce.
Any property that was acquired during the marriage by gift or inheritance is also considered separate property.
If you and your spouse agree on how to divide your property then the court will simply approve your agreement. If you can't agree the court will divide things up for you the way they choose.

CHILD CUSTODY

Even if you and your spouse are never on the same page of on money matters, you should both try your hardest to come to an agreement about child custody. A child custody fight will indeed harm your children more than any other kind of dispute that might come up in the divorce process. Try to do any and everything to avoid it.

Things to figure out if you have children:

You or your spouse will pay child custody
You have to decide wether you and your spouse will share custody equally or who will be the primary custodial parent.
The person who does not have custody will be awarded visitation rights
Both spouses or one spouse may be ordered to make either a periodic, lump-sum, or in some cases may require a spouse to pay both payment intervals.

Types of custody:

Custody means to have physical custody: you child lives with you and legal custody: make legal decisions about the child welfare and education.
Sole custody, if a parent has both legal and physical custody and the other has fairly limited visitation.
Joint custody: both parents share physical and legal custody.

SPOUSAL SUPPORT (spousal maintenance)

Texas allows a maximum spousal support payment of $5,000 a month or 20% of a spouse’s average monthly gross income, if that amount is less then the $5,000.
Spousal support can be only required when the receiving spouse is not able to earn sufficient income and the time frame is not forever.
How long can you receive spousal support in Texas if you meet the requirement? Married 0-10 years = None, Married 10-20= up to 5 years, Married 20-30 years= up to 7 years, Married 30 or more years= up to 10 years
There are three exceptions:
- Mental or Physical disability
- Needed for tending to an infant or young child of the marriage
- A spouses earnings are enough to provide for the "minimum reasonable needs"

At this point you and your spouse have either came to an agreement and signed a decree of divorce or their still isn't an agreement on all terms. If the parties cannot reach an agreement, they may be required to attempt Mediation (only if you haven't already). If the parties cannot reach agreement, a trial date will be set and the judge will decide what the terms of the divorce will be.

Agreed Divorce: In an agreed divorce divorce, the spouses will include the terms of the divorce within a document called the "Final Decree of Divorce" or what is often referred to as the "Decree". The document will be signed by both spouses and then presented to the judge for his/her signature by one or both of the spouses at a "prove-up" hearing. The presenting spouse will hand the Decree to the judge and read a few sentences from a script. Once the Decree has been proved up, the judge will make it official and sign the Decree.

Comments 511

Janny
December 4, 2021 at 11:02 pm

If I get a post nuptial agreement made in California, then we both move residency to Texas and file there for divorce after a year, will the CA post nuptial hold up in Texas?

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Alberto Calazans
November 24, 2021 at 11:50 am

My divorce process is already on day 70 and the judge hasn’t signed yet. My wife is the petitioner and also filed for:
-Final Decree
-Notice of appearance (I believe this is so her layer will do the appearance for her)
-Prove Up Affidavit (to prove up agreed final decree of divorce)
-BVS Form
We filed for an uncontested divorce. We both signed waivers for evaluation appraisers, and representing that the decree filed contains and express terms that have been agreed upon between us. We have read the Agreed Final Decree of Divorce fully and completely, have had the opportunity to ask any questions regarding the same, and fully understand that the contents of this Agreed FinalDecree of Divorce constitute a full and complete resolution of this case.
When the judge finally signs the divorce, can my wife change her mind and request changes on the terms?

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1. Post
  Author
  
  txdivorce
  June 6, 2022 at 12:39 pm
  
  Typically, the Petitioner will present the Agreed Divorce Decree to the judge for signature at a “prove-up hearing”.
  
  Reply
Sophie
November 14, 2021 at 2:45 am

My husband filed for divorce.(1)Does he have the right to file a divorce lawsuit if he has not lived in Texas for the last 6 months on the day he sued? He has lived in Dallas for 5 and a half months on the day he sued. (2)China is the last place where we lived together as a married couple. Actually, we lived together in China from Sep. 2017 to Mar. 2021. My husband provided wrong information that Texas is the last state where we lived together as a married couple to Taxes District court.(2)My husband wrote wrong dates of separation of Otc.2020, the right date is Mar.2021.
He provided the above three false information to the court. Is his lawsuit illegal? Is it invalid? Can I ask the court to dismiss his claim?
I live in China and cannot go to the Texas at the moment. If he comes to China to sue, we may appear in the court at the same time, it will help us to provide the documents needed by the court equally and accurately, making it easier to achieve a fair judgment. We have lived together in China for 3 and a half years, and China is also our last place of residence as a married couple. Can I apply to the court for him to sue for divorce in China?

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Mary Garcia
November 3, 2021 at 3:26 pm

What happens if spouse does not want to sign divorce decree and submitted answer form and has agreement signed by a judge, can divorce be granted.

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LaTonya
October 25, 2021 at 10:46 am

My 61 days are up why hasn’t my ex been served and a court date been set yet?

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Many
October 12, 2021 at 5:56 pm

Where can I find a spousal maintenance form?

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txdivorce_uncontested
September 23, 2021 at 5:54 pm

My divorce is uncontested. My ex signed the petition, waiver of service, and marital agreement. He is stalling on the decree. What happens if I go to the prove up hearing and the decree is not signed by him?

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1. Post
  Author
  
  txdivorce
  June 6, 2022 at 12:40 pm
  
  The court will assume your spouse does not agree to the terms of the decree and will want you to meditate your difference before setting a trial date.
  
  Reply
Rebecca Silica
September 18, 2021 at 7:40 am

If I file for a divorce and my spouse is refusing to answer my calls , and I don’t know where he lives now, am I able to send paper work to his employer. It’s the only contact I have for him.

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Jeffrey S
September 3, 2021 at 4:16 am

I have had a divorce pending since 2017 when my wife had me served out of the blue. That same year, I moved to another city and in 2019 we both signed an uncontested final decree of divorce in front of a notary and got it notarized to turn in to the court back in the county of the original petition. Due to moving again and Covid these documents never reached the courts and now I am be served again with an “Amended Petition”. In this case, does the original petition and notarized Final decree still stand? Some of the major differences in this is now I’m an “Adulterer” per the new documents and she’s suing for spousal support and putting a restraining order on me as if she needs it.

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Tiffany Clemons
August 31, 2021 at 9:55 am

Do I have the right to request that my spouse still be responsible (even just temporarily) for the mortgage payment, possibly the car note as well? If so, on what document of the divorce papers do I state that request?

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Susana
August 11, 2021 at 8:53 pm

I filed pro se but now I’m having issues with my spouse and refuses to sign any response. Can I still be granted my divorce?

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Pam
August 2, 2021 at 8:16 am

How long after the proof hearing will the divorce be signed off by the judge and finalized and how long after it is final to you have to wait to remarry. We have been seperated 18 years so we have both moved on.

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Cynthia
July 30, 2021 at 6:52 pm

I filed a divorce petition EFile and it was accepted in Travis County. My spouse signed a waiver. Three days after petition and it was accepted via EFile. Will the court mail or email a court date? When Do the Final Decree need to be submitted

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John
July 28, 2021 at 7:28 pm

My wife said she would cooperate and sign divorce papers so I recommended that she complete an answer after I filed my petition for divorce. Now she has changed her mind and doesn’t want to sign the final decree or be involved with the divorce in any way–she does not want to divorce. My understanding is that the divorce is now contested and that I have to request a contested final hearing. What will happen when she does not show up for the hearing? Will the judge consider the final decree I’ve already completed or rule independently?

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Michelle
July 20, 2021 at 10:25 am

Can a waiver for the 30 day probation period be presented to the judge with the final decree on the court date? We have a court date. Are there steps to take before court for the waiver? Divorce is uncontested. No children.

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Tay
July 19, 2021 at 4:09 pm

My spouse filed in April this year , I have not received any paper work but it said the final divorce decree was signed by me but not the wavier so the hearing was passed as it had not been 60 days in the state of Texas . I live in Alabama so im not sure who signed papers for all this but I know I didn’t.

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Lori Nguyen
July 11, 2021 at 1:15 pm

I talked with my spouse and told him I am going to file for divorce and he said go ahead but he won’t tell me specifically where he is. He gave me the general idea where he is and said that if I file, then he will meet me and sign all the paperwork. My concern is if I mark on my original filing paperwork that he doesn’t need to be served at this time and he decides to ghost me, what are my options?

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Manda
July 7, 2021 at 9:51 am

How do I go on to the next step in getting my divorce finalized as the respondent now that my husband says he can’t write the final decree??? I need this divorce…

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Ann
June 30, 2021 at 8:43 am

My husband has worked in TX and had an apartment here for the last 3 years; however, I have just moved to TX in the last month. Would he be considered a resident of both states? Would I have to wait till we have both had our resident here for 6 months? The other resident wasn’t to establish a home here, just for work.

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Liz
June 26, 2021 at 11:45 am

The final decree of divorce was signed by the judge. Is there anything else I’m supposed to do once it’s signed? It’s been over a month and I haven’t received notice or seen payment of any kind on child support. How soon after the decree is signed does the child support go into effect?

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GLH
June 22, 2021 at 8:03 am

I have efiled for divorce and the court has accepted the filing. How much time do I have to arrange to have papers served?

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Joey Durham
June 22, 2021 at 4:29 am

How do I find out if the court dismissed the divorce petition?

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1. Post
  Author
  
  txdivorce
  June 6, 2022 at 12:43 pm
  
  You call call the court clerk.
  
  Reply
Linda
June 21, 2021 at 12:16 pm

My husband and I agreed to an uncontested divorce. The original petition has been accepted and I sent him the waiver to sign, but he hasn’t. The 20 days are almost up, what are my options if he doesn’t sign within the timeframe? If I serve him, do the 20 days start over?

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1. Post
  Author
  
  txdivorce
  June 6, 2022 at 12:44 pm
  
  Correct, you would serve your husband and he would have until the Monday following the 20th day from being served to file a response.
  
  Reply
kl
June 17, 2021 at 7:58 am

What should I do if I filed a petition in the wrong county? Can I transfer the case to the correct county? This is an agreed divorce with no children and no property.

I filed in Harris County but I live in Fort Bend, and the judge has declined to sign.

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Diana
June 14, 2021 at 7:59 am

I want to cancel my divorce because we reconciled. What is the process if you are 2 weeks over the cool off period.

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1. Post
  Author
  
  txdivorce
  June 6, 2022 at 12:45 pm
  
  You should be able to dismiss the Petition for Divorce.
  
  Reply
Nicole J
June 9, 2021 at 9:05 am

What happens if the divorce has been filed but the spouse hasn’t been served? Does the 60 day countdown still apply or only once the spouse has been served?

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Laura Smith
June 5, 2021 at 1:10 pm

My boyfriend had got married on 08/2010 in another State, they lived together for 5 months & then split up. No kids / No property together. He’s not seen nor heard from her since, nor do we know where she is today. He move to Tx in early 2014 & has live here ever since. We both live paycheck to paycheck & do not have the money for lawyer. It’s very costly to hire someone to nail down her location to deliver an “official” notification. It’s been over 11yrs since their split & they only lived together 5 months after they married. How does one get a divorce from a spouse who plays “cat & mouse” like games or does not want to be found?? Maybe I’m misunderstanding the legal lingo, does Tx law not allow for a cases where 1 spouse just Disappears & Does not want to be found or respond to the other???
Thank you in advance.

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Sherry Thomas
June 5, 2021 at 9:04 am

I filed a petition for divorce in Aug. 2020, and the defendant moved out of town and I haven’t been able to contact him. I finally was able to find an address on him and had him served. I found out that I didn’t properly have him served because I didn’t;t first enter a citation of service with the court first. He signed the waiver of service and it has been submitted to the court.I haven’t been able to get him to sign the final decree of divorce, may I move forward with the divorce with ought him signing anything. Also OG has intervened on the case for the child support. How do I finalize this case so I can finally put this behind me.

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Brandon D.
June 3, 2021 at 6:39 am

What if my spouse changes their mind before 61 days and I remain unsure?

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Tracy Johnson
June 1, 2021 at 5:42 pm

I’m in desperate need of a divorce. My husband & I got married in July 2005 & were separated by Sept 2005. I tried to get an annulment at the time but the county we resided in stated that I had to file for a divorce. Attempted Legal Aid but was denied due to my income. So I had quiet a few consultations with different attorneys. This was in 2005 not one attorney wanted less than $2500! Grant it we had no assets or property together just 3 sons but I had already was legally established their legal guardian. I couldn’t afford that factoring in that I had 3 sons & was a single parent. Fast forward to roughly 3 years ago I had the forms drawn up for my divorce but since I have not any contact with this man since 2005 & he lives out of state currently. I want a divorce so bad but have felt helpless in getting this resolved. Our children are now adults too.

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